The daily herald. [volume] (Honolulu, Hawaiian Islands) 1886-1887, 1887-04-11
suPGENE COuGr.


and Bickerton
The appeal Of Young Tang from the
sentence Of ST., 900 fine and two years
Imprisonment in the Honolulu Police
Court was argued before the Judges on
Saturday Mr. ]. I. Dare presented
the case for the appellant, and Mr..
Paul Neumann for the Crown. The
constitutionality Of the opium law was
denied by appellants counsel in an
elaborate address. The points taken
in the whole case were, generally-(D,
That there was not sufficient evidence
presented in the lower Court, and that
the provisions Of the Act do not war
rant such sentence (s), that the law
itself cannot be construed by any Court,
and is, therefore, void (3), the law is
Unconstitutional
The counsel claimed that the old
law was prohbitory, and, under it, the
possession Of opium might be treated
as NAHUM in Sc, and that the law Of '86
was permissive and regulative, and as
the law presumes the possession Of
opium to be rightful, the burden Of
proof to the contrary falls upon the
prosecution, and that it was wrongful
must be established by evidence of a
breach Of the provisions Of the law
itself The duties and obligations i'm
lposed upon the Government and the
licensee are conditions 6,seedenf, and
the enforcement of the penal clause are
subsequent, and when the Crown seeks
to punish a consumer Of any licensed
article for any violation Of the license
law, it must Show that the conditions
precedent have been conformed to, and
that accused has, in fact violated the
conditions subsequent
The Hawaiian Criminal Code was
cited to show that the accused party
must be presumed innocent until proven
guilty, and that due and legal convic-
lion is required. If this presumption
be not successfully disputed by the
Crown, it holds good throughout the
trial, and inures to the benefit of the
accused at the close Of the prosecution,
and the defendant need not offer any
defense, but is, under the Hawaiian
laws, entitled to his discharge.
Section 4 Of the law Of 1886 fixes
| the penalty for having possession Of
opium contrary to Section 3 of that
law. What are the provisions Of Sec
ton az Are they not entirely directory
and mandatory, and addressed to the
licensee alone1 What provision oI
Section 3 can a consumer or user vic
latel The provisions Of Section 3 car
be violated only by the licensee, anc
his penalty for such violation is fixec
in Section 6. The act or acts of ar
intending purchaser or user of opium
made necessary by the law-are, j
any, enumerated in Sections and 7 o
the law. These Sections make thu
physicians certificate and The Marshall
license essential, the last to be issued
on presentation of the first named. Th'
naked possession OF opium under Law
permitting its importation and sale j
, not a crime in itself, and is only al
: offense as declared by statute.
Penal statutes are to be strictly con
strued, and penalty provided for tn
violation Of any Of the provisions of
:. named section cannot be inflicted upo
# a person, even when found guilty, 70
u the violation of the provisions c
II another section not named. Th
IS law itself illustrates this. Sectio
c makes the possession Of opium cor
c trary to the provisions Of section 3 a
n offense punishable by fine and impri'
y onment; the same section makes tn
r sale OF opium an offense punishable b
e fine and imprisonment if done contrar
y to law, or in other words contrary
J, any other Of the provisions Of this Law
70 for there is no other law upon the sal
or importation Of opium.
Therefore it follows that the sale {
opium contrary TO any OF the provision
relating thereto, of this law, is q
ofiense punishable by fine and impri
onment, and the possession OF opiul
J, contrary to the provisions of section
- and of section 3 only, is made a
:, ohense punishable in like manne
= And whereas section 8 makes no pr
: vision whereby opium may become pc
~ sessed of the mere possession cann'
), be contrary TO, OF in violation of any
y the provisions Of that section. Furthe
y as section 4 names the possession
:, opium ain ofense conditioned upon Il
~ violation Of the provisions of section
" and section 3 has no provision that Il
40 possession OF opium violates, il follo'
70 that this is not an offense punishab
10 under section 4, the only section tn
>, mentions possession, and 1t clear
70 appears that the possession of opiu
ne in quantity too small to raise the pr
81 sumDtion that the DOssessOT is q deal(